Catalyst Provisional Lending Pty Limited v Dick-Telfar - [2020] NSWSC 79

Supreme Court

New South Wales

Medium Neutral Citation: Catalyst Provisional Lending Pty Limited and Ors v Dick-Telfar and Anor [2020] NSWSC 79
Hearing dates: 4 February 2020
Date of orders: 14 February 2020
Decision date: 14 February 2020
Jurisdiction: Common Law
Before: Johnson J
Decision:
1. The Defendants’ Notice of Motion filed 4 September 2019 is dismissed.
2. The Defendants are to pay the Plaintiffs’ costs of the Defendants’ Notice of Motion filed 4 September 2019.
3. Pursuant to Rule 13.1 Uniform Civil Procedure Rules 2005, summary judgment is given to the Plaintiffs for possession of the whole of the land described in Folio Identifier 19/12/31637 being the land situated and known as 164-164A Prince Edward Street, Malabar in the State of New South Wales (the Malabar property).
4. The Plaintiffs have leave to issue a writ of possession forthwith with respect to the Malabar property.
5. The Defendants are to pay the Plaintiffs’ costs of the Plaintiffs’ Notice of Motion filed 17 September 2019.

Catchwords: REAL PROPERTY - mortgagee claim for possession of land arising from alleged default under mortgage - application by mortgagees for summary judgment seeking order for possession - whether any arguable defence to claim for possession - mortgagors allege conduct by mortgagees which prevented payments due under loan agreement and mortgage - conduct complained of by mortgagors post dated entry into loan agreement and mortgage - held claim of mortgagors did not impeach mortgagee’s title - no arguable defence to claim for possession - summary judgment granted to Plaintiffs
Legislation Cited: Powers of Attorney Act 2003
Uniform Civil Procedure Rules 2005
Cases Cited: Commonwealth Bank of Australia v MLD Financial Services & Management Pty Limited [2015] NSWSC 1476
Dey v Victorian Railway Commissioners (1949) 78 CLR 62; [1949] HCA 1
General Steel Industries Inc v Commissioner of Railways (NSW) (1964) 112 CLR 125; [1964] HCA 69
Inglis v Commonwealth Trading Bank of Australia (1972) 126 CLR 161; [1972] HCA 74
Morel v Bank of Queensland Limited [2015] QCA 58
O’Brien v Bank of Western Australia (2013) 16 BPR 31,705; [2013] NSWCA 71
Webster v Lampard (1993) 177 CLR 598; [1993] HCA 57
Texts Cited: ---
Category: Procedural and other rulings
Parties:
Oxygen Funding Solutions Pty Limited (First Plaintiff)
Catalyst Provisional Lending Pty Limited (Second Plaintiff)
John Ramsay (Third Plaintiff)
Robert William James Dick-Telfar (First Defendant)
Kristin Lorna Cashman Venae-Telfar (Second Defendant)
Representation:
Counsel:
Mr D Edney (Plaintiffs)
Robert William James Dick-Telfar (First Defendant - in person)
Kristin Lorna Cashman Venae-Telfar (Second Defendant - in person)
Solicitors:
Summer Lawyers (Plaintiffs)

File Number(s): 2018/315828
Publication restriction: ---

Judgment

JOHNSON J: Before the Court are Notices of Motion filed in Possession List proceedings between the Plaintiffs, Catalyst Provisional Lending Pty Limited, Oxygen Funding Solutions Pty Limited and John Ramsay and the Defendants, Robert William James Dick-Telfar and Kristin Lorna Cashman Venae-Telfar.
The principal proceedings between the Plaintiffs and the Defendants involve a claim for possession of land at 164-164A Prince Edward…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2020] NSWSC 79
Decision Date: 14 February 2020

CaseChat Overview and Summary

Catalyst Provisional Lending Pty Limited applied for summary judgment against Dick-Telfar in the Federal Circuit Court of Australia, seeking an order for possession of land arising from an alleged default under a mortgage. The mortgagors, Dick-Telfar, raised a defence alleging that the mortgagees' conduct prevented payments due under the loan agreement and mortgage. The court was required to determine whether the mortgagors' defence was arguable and could potentially defeat the mortgagees' claim for possession. The mortgagors' defence was based on events that occurred after the loan agreement and mortgage were entered into, which raised questions about the timing and relevance of their claims.

The court found that the mortgagors' claims did not challenge the mortgagees' title to the property. It further held that the mortgagors had failed to establish an arguable defence to the mortgagees' claim for possession. The mortgagors' alleged conduct did not provide a basis for defeating the mortgagees' entitlement to possession, as it was either irrelevant to the terms of the mortgage or occurred after the default had already arisen. Consequently, the court granted summary judgment in favour of the mortgagees, Catalyst Provisional Lending Pty Limited.

The court's decision underscored the importance of strict compliance with the terms of a mortgage agreement and the limited scope of any equitable defences that may be available to mortgagors. In this case, the mortgagors' claims were found to be insufficient to prevent the mortgagees from obtaining an order for possession. The court's ruling confirmed the mortgagees' right to enforce the terms of the mortgage and seek possession of the property in the event of a default.

Orders